By Richard Norman
Attention turned to the House of Lords this week as Patrick "Obstruction of Justice" Fitzgerald brought down one of its members on felony charges. Lord Black will no longer be allowed to sit as a Tory, but he is allowed to keep his peerage. In Canada, a lot of the resentment and dislike of Lord Black stems from the fact that he turned in his Canadian citizenship in order to sit in the British upper chamber. While Lord Black may have been found guilty by a jury of his peers, his conviction (if it stands) should not be allowed to sully the reputation of peers in general. There are many deserving and qualified member of the House of Lords out in the world doing good works. Among them Lord Ashdown of Norton-sub-Hamdon. Among the many strains of neo-conservative hubris that led to the current disaster in Iraq, the most tragic is the ignorance of history. Many occupations and post-war reconstructions have been successful; indeed, a blueprint for success exists: in Japan and Germany after the Second World War, in South Korea over the last few decades, and in Bosnia since 1995. All of these hard-won lessons gathered dust in State Department offices rather than seeing the light of day in Baghdad. In a series of twenty minute documentaries, Lord Ashdown, the former High Representative in Bosnia, leads us through these lessons and sharply underlines how incompetent and ignorant the actions of the Bush Administration have been in Iraq. To briefly summarize his main point: democracy is much more than a purple-stained finger: it requires basic security, a functioning economy, healthy institutions, an independent judiciary, a climate of moderation–and then elections. All these things must be achieved internally, by the people, rather than imposed by a viceroy. The international community can provide guidance, can be a guarantor, but the people of the state must feel like they are real participants and able to affect change. And no success can be had unless basic security is provided and the economy is up and running–these two requisites must precede everything else. Part 1: Post war Germany Part 2: El Salvador Part 3: Bosnia Part 4: Iraq -Richard
If I may, I would amend my last sentence by adding that in some places even huge resources for the defense may not help. In these places, there is only one elephant in the jungle. I think Lord Ashdown would agree that we should promote reform there first.
We might leave this agreeing that aggressive prosecution can be abusive, and this is most fun to argue about in high profile cases. Just look ask Mr. Khodorkovsky, if you care to travel to Siberia to have that pleasure. And there is also no question that the US approach is a tough one. It imposes a huge burden on rich defendants to pay outrageous fees for aggressive lawyers to argue that the prosecution failed to establish the case beyond any reasonable doubt (while his or her client sits back silently nodding his or her head knowing that no one may ask him or her what really happened unless the defendant chooses to say something). Just ask O.J. Simpson (about the criminal prosecution where he prevailed, not the civil case where he lost). And heaven help you if you cannot afford a good lawyer: Though I have not heard about many high profile cases where there was inadequate assistance of counsel for the defense. On the other hand European prosecution also seems to be getting a bit tougher over the last years. Mr. Berlusconi might have something to say about that. The Germans seemed to be more discrete if we use as a benchmark the rather ugly deal that prosecutors made with Mr. Kohl allowing him to keep secret the people who gave all that money. Should they have been tougher? On the other hand, I think they were very nasty indeed to Mr. Ackerman who was raked over the coals in the courts and the press. Was he really that evil? My point? Yes, the US system has warts. But prosecution is a tough and ugly business everywhere, not just in the US. And in high profile cases, defendants are not without resources to balance out aggressive prosecutors. It is a battle of the elephants, where the grass is sure to suffer.
I agree…and I think the special prosecutor rule should be adjusted. I’m no more a fan of Ken Starr than of Fitzgerald. As for the American prosecutorial system I also agree with your description but not necessarily with your assessment. It is the prosecution who first lays charges and the idea that they might throw as much as possible at the defendent in the initial stages with the hope that something sticks is plainly unjust. As they are the ones who instigate the process (and represent the state), the burden to behave responsibly lies on them. The defence lawyers’ responsibility is to get their client off in any way possible. There are many countries that ask their prosecutors to simply present the evidence of the case and not keep a win/loss tally. I think that’s superior, and that Fitzgerald’s recent “victories” are ugly examples of a flaw in the American system…
ps
I think I will wait for the official news about the WSJ before I launch into my defence of Murdoch…;
Borrowing a line from Mr. Grant (legal historian), in hell due process is strictly observed.
Ok Richard – No doubt you are right that the US way of characterizing and exaggerating can be irritating. It even irritates Americans, and it is a problem that distorts political debate from the right and left. This is indeed troubling when the exaggerations relate to personal integrity issues. Thus, I am equally troubled by the way Bush people and conservative commentators personally disparaged John McCain, John Kerry, Joe Wilson, and Valerie Plame as I am by the way liberal commentators personally disparaged US Supreme Court justices for the way they decided Bush .v Gore, and the way many routinely question President Bush’s personal honesty and intelligence (which happens in Europe too by the way). Egads! I may have done this myself! I am also troubled by the blurring of the lines between news and entertainment in the US. For example here is a fascinating blog from Russia
http://www.siberianlight.net/2007/07/13/cnn-takes-fake-100-bill-story-and-runs-with-it/
about the way CNN linked a minor incident in Maine involving Russians who may have used counterfeit money to try to buy vodka to Mr. Putin as the evil force behind all of the troubles in the world. The attached video clip is rather shocking. I wonder what Mr. Murdoch would think of this as he prepares to take over WSJ? It might even be too tame for him given what happens on Fox News. Perhaps Lord Black would take a more enlightened view of things. Ah well.
But when we turn to legal issues, we might keep in mind the rather unique adversarial nature of the US system. Litigators (including prosecutors) routinely ?load it on” when they start an action, and rarely expect to prevail on all arguments. The defense routinely denies all allegations, while employing procedural games and hiding behind burden and standard of proof protections. Lawyers for Lord Black and Mr. Libby may indeed persuade appellate courts to reverse trial court judgments. But they too will ?load it on” in their legal arguments to the appellate courts. This is the rather bewildering way the US legal system works. I would argue that Mr. Fitzgerald is a rather typical professional actor in the US setting and not the rogue that you seem to think he is. Indeed, if we consider who would fit such a ?rogue” definition, how about Mr. Ken Starr who a long time ago started to investigate financial dealings related to something called ?Whitewater”? Compared to Starr, Fitzgerald has been rather tame. But even Starr (who had rather obvious political motives) was not punished for bring a rogue. Did he win or lose? He used the procedural tools that the legal system gave him at the time. Fitzgerald now uses the rules of the game as he sees fit. I have not heard that he violated any rules. Instead of whether Starr, Fitzgerald, Black or Libby have won or lost, we might be wiser to ask whether society wins or loses by the way this game is played? Should the rules of the game be changed? That, my friend, would be the subject of a much longer post! We might end by agreeing that those with conservative, left wing, and centrist views all can find plenty to complain about when they are in dispute.
Yes, Black was convicted of three charges of mail fraud, but the majority of the charges against him were thrown out. So while the prosecutors spoke of a massive swindling involving more than 60 million dollars in fact the jury finds there is only enough evidence to convict him on less than 3 million dollars worth of fraud. While the prosecution might spin this as a victory, it is a truly lousy result for the taxpayer (think of the millions spent on the prosecution) and to the shareholders of Hollinger who saw their holdings eviscerated. I think this case could have gone either way, and that on appeal Lord Black (like Libby) may well be vindicated. My point of comparison is that the substantial charges in both cases (racketeering/massive fraud for Black, revealing a cia agent’s name for Libby) were not proven and instead the prosecution was only able to prove marginal/questionable charges…I find the huge headlines and general tone of the coverage of both cases to be pretty irritating–not all convictions are equal, and to say either Black or Libby have definitively lost seems premature and ignores the point that the heart of the cases against them–the CAUSES for the cases to have been brought–were not proven.
Hmmm. It is true that Black was convicted of obstruction of justice. But Black was also convicted of three counts of mail fraud. Indeed, Hollinger and the SEC had started pursuing civil remedies against Black more than a year before Fitzgerald started his criminal case. Sorry — I’m not sure I see the “recklessness” of Fitzgerald’s action here. I also see no basis for your argument that the jury was “bewildered”. Nor do I see the basis for your claim that all of the above was based on Black’s political agenda. As far as I understand, the problem was his diversion of corporate funds for non-corporate purposes. Yet, perhaps I do not have all the facts. Could you be more specific?
My segue was a bit forced. It would be nice to see the EU, for example, officially take up Ashdown’s pragmatic plan for post-war peace as the House of Lords is not going to do much about it. In the interim, however, Ashdown’s peerage gives him increased stature and profile, both of which help his activism.
But the more interesting point is Fitzgerald. Again we see a reckless prosecution which fails to prove the substantive crimes and is lucky to squeeze an iffy “obstruction of justice” charge out of a bewildered jury. Another distinguished gentleman with unpalatable politics (to some) tarred and feathered…
Ah Richard! A defense of the House of Lords (and indirectly of Lord Black) based on a television series about a subject that the House of Lords has no power to influence? Perhaps then the House of Lords is a touch more significant than speakers corner at Hyde Park (its memebers can get on TV). But what institutions will act to improve the handling of the types of problems that Lord Ashdown critiques? The UN? Will there be a debate of Lord Ashdown’s remarks there? Or even within the House of Lords? The great thoughts of great men lead us nowhere without great institutions to implement them. And sad to say, the House of Lords is not one of them.